4.  The applicant was born in 1964 and lives in Middlesex.
5.  The facts of the case, as submitted by the applicant, may be summarised as follows.
6.  The applicant, who has a severe learning disability, has three children. From May 1990 she was in receipt of two non-contributory state benefits administered by the Secretary of State for Work and Pensions: child benefit and means-tested income support. Her income support personal allowance was assessed on the basis that she was a lone parent. She received an additional amount of personal allowance for each child who was a member of her family and a family premium. The benefits were paid by order book.
7.  Pursuant to regulation 32(1) of the Income Support (General) Regulations 1987 (“the 1987 Regulations”), the applicant was under a duty to report any change of circumstance which might affect her entitlement to benefit to the Department of Work and Pensions (“DWP”). A note on the back of her order book advised her that she might break the law if she did not notify the DWP if a dependent or someone living with her moved to a different address. She had also received a Form INF4, which advised her that she should immediately inform the DWP if, inter alia, children that she had claimed for were taken into care.
8.  In October 2000 the applicant’s three children were taken into care. She did not report this fact to the DWP. At the time, however, the applicant did not have the services of a social worker and she did not receive any practical help from the local authority disability team. It was accepted that she did not realise that this was a fact which she was required to report.
9.  In November 2001 the applicant began to receive support from the Owl Housing Link Project, a charity which provides a range of support services to people with learning difficulties.
10.  In December 2001 Owl Housing notified the DWP that the applicant’s children had been taken into care. There followed four separate decisions. First, the Secretary of State decided, pursuant to section 71(5A) of the Social Security Administration Act 1992 (“the 1992 Act”), to supersede her award of income support to reflect the fact that she had been receiving benefit to which she was not entitled. Secondly, a decision was made that the requirements of section 71(1) were satisfied so that the Secretary of State was entitled to recover the overpayment. Thirdly, the Secretary of State decided to exercise his discretion so as to recover the overpayment. Fourthly, the Secretary of State decided to recover the overpayment by reducing the applicant’s future payments of income support by the amount permitted by regulation 16 of the Recovery Regulations.
11.  The amount of income support that the applicant had received in respect of her children after they had been taken into care was GBP 6,561.76. However, this amount was reduced by approximately 30 percent to GBP 4,626.74 because during the relevant period the applicant could have claimed, but did not claim, an income support disability premium.
12.  The applicant appealed to the Social Security Appeal Tribunal (“the Tribunal”) against the Secretary of State’s decision that she had to repay GBP 4,626.74. She relied on previous decisions of the Social Security Commissioners, in which they held that there would be no failure to disclose unless disclosure was reasonably to be expected. If there was no failure to disclose, the question of recovery of an overpayment would not arise at all. The Tribunal allowed the applicant’s appeal, finding that the relevant test was not what a reasonable man would have thought it appropriate to disclose, but rather what a reasonable man knowing the particular circumstances of the claimant would have expected her to disclose. The Tribunal accepted that the applicant did not understand that the placing of her children in care was a material fact which she needed to disclose to the DWP, and that it was not reasonable to expect her, in the particular circumstances of her case, to have disclosed that fact.
13.  The Secretary of State appealed to the Social Security Commissioners (“the Commissioners”). The Commissioners allowed the appeal, holding that if a claimant was aware of a matter which he or she had been required to disclose, there would be a breach of that duty even if, because of mental incapacity, the claimant was unaware of the materiality or relevance of the matter or did not understand an unambiguous request for information. Notwithstanding the settled case-law of the Commissioners, the “reasonableness test” was not a requirement under section 71 of the 1992 Act and did not represent a possible construction of section 71. Capacity was not relevant to the issue of failure to disclose and the applicant was in breach of the obligations imposed on her under the first limb of regulation 32(1) of the 1987 Regulations.
14.  The applicant appealed to the Court of Appeal. She submitted that there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. I in that the State’s interference with her possessions discriminated unjustifiably between people who were unable to report facts because they were not aware of them and people who, like the applicant, were unable to report them for some other reason. It was argued in the alternative that the law treated identically people who were capable and people who were incapable of understanding that there was a fact which they were required to report.
15.  The Court of Appeal held that the argument fell at the first fence because there were no possessions of the applicant at stake: what the Secretary of State was claiming was an entitlement to recover money which should not have been paid to the applicant in the first place. Although the decision of the Court of Appeal in the case of R. (Carson and Reynolds) v. the Secretary of State for Work and Pensions to the effect that a non‑contributory benefit such as income support was not a possession within the meaning of Article 1 was taken as correct by the House of Lords, the underlying issue of principle awaited the decision of the Grand Chamber of the Court in the case of Stec. The recovery of overpaid benefits, however, stood outside this question and by parity of reasoning outside Article 1 of Protocol No. 1.
16.  The Court of Appeal went on to reject in any event the applicant’s first alleged ground of discrimination as it did not consider people who were unable to report facts because they were not aware of them to be in an analogous, or relevantly similar, situation to people who were unable to report them for some other reason. The proposition that you could not report something that you did not know was a simple proposition of logic, whereas the proposition that you could not report something you did not appreciate you had to report depended on difficult questions of cognitive capacity and moral sensitivity which varied from person to person.
17.  As to the latter ground relied upon by the applicant, namely that the law treated identically people who were capable and people who were incapable of understanding that there was a fact which they were required to report, the Court of Appeal found it unnecessary to determine what was considered to be a difficult question, since the recovery of overpaid benefits could not in any event amount to a deprivation of possessions.
18.  On 6 March 2006 the applicant was refused permission to appeal to the House of Lords.